Supreme Court Blocks OSHA’s Vaccine or Testing Mandate; Lifts CMS Injunctions

On January 13, 2022, the United States Supreme Court issued two opinions regarding federal vaccines mandates. The Court’s opinions are not the final resolution of these matters. Instead, the opinions address the limited question of whether the Occupational Safety and Health Administration (“OSHA”) and the Center for Medicare and Medicaid Services (“CMS”) can enforce compliance of each federal agency’s mandate while the legal challenges to the mandates are resolved in lower courts.

The Supreme Court’s first opinion stayed OSHA’s Vaccine or Testing Emergency Temporary Standard (“OSHA ETS”) saying “Congress has indisputably given OSHA the power to regulate occupational dangers” but not “public health more broadly.” As you know, the Sixth Circuit Court of Appeals recently lifted the stay, which left employers scrambling to meet OSHA’s new compliance deadlines of January 10 and February 9, 2022. The United States Court of Appeals for the Sixth Circuit will now hear the case on its merits. The stay will remain in effect during that time. This matter may ultimately end up before the Supreme Court a second time following the Sixth Circuit’s final decision, but for now, employers who issued vaccination or testing polices in order to meet the January 10, 2022, OSHA deadline may stop enforcing those policies. Alternatively, employers may choose to voluntarily keep all or part of those policies in place. Ultimately, employers should speak with their legal counsel to determine appropriate safety measures based on the unique risks and circumstances of their workplace.

In the Court’s second opinion, it lifted two injunctions, the first issued by the U.S. District Court for the Western District of Louisiana and the second issued by the U.S. District Court for the Western District of Missouri. Both injunctions blocked the CMS from requiring staff at covered healthcare facilities to be vaccinated against COVID-19. The Court explained that the core mission of “healthcare providers who care for Medicare and Medicaid patients [is to] protect their patients’ health and safety.” The United States Court of Appeals for the Fifth Circuit will now hear the case involving the State of Ohio’s challenge on the merits. The United States Court of Appeals for the Eighth Circuit will decide the second case. Similar to the OSHA case, these cases could ultimately find their way back to the Supreme Court for a final resolution after each of the appellate courts reach a final decision.

Healthcare facilities should work with their counsel to draft appropriate policies and procedures to comply with the Interim Final Rule on COVID-19 Health Care Staff Vaccination (“CMS Mandate”) if they have not done so already. On December 28, 2021, the CMS issued a memorandum outlining surveying compliance deadlines, which require that all staff in covered facilities receive at least one dose of a COVID-19 vaccine by January 27, 2022. Facilities that have less than 100% staff vaccination rates (not including individuals who have a pending request or who have been granted a qualifying exemption) will be deemed non-compliant and subject to enforcement actions. By February 28, 2022, all staff must have completed a primary vaccination series (unless they have an approved exemption). Penalties for non-compliance vary based on the severity of the deficiency and the type of facility, but may include plans of correction, civil monetary penalties, denial of payment and termination.